(Respondent's Response, p. 1). Respondent raises two arguments in support of its objection: 1). A new defendant may not be added in an amended pleading when there was no mistake regarding the identity of the responsible party, and 2). Jack Maxwell would be prejudiced by being added as a respondent because he will not have time to prepare a defense before the close of discovery and the beginning of the trial. (Respondent's Response, p.3).
In Wilson v. Bolin Associates, Inc. , 91-STA-4 (Sec'y Dec. 30, 1991), the Secretary of Labor agreed with the administrative law judge's decision to allow the Complainant to amend his claim to add an individual as a party when the individual was reasonably within the scope of the original complaint, received notice from the outset of the case, and participated in the investigation and all proceedings. The Secretary of Labor found the amendment to be proper under 29 C.F.R. § 18.5(e) and consistent with cases arising under Fed. R. Civ. P. 15. The Secretary of Labor also pointed out that Bolin, who was the person who discharged the complainant, is personally liable under the express language of STAA. See Wilson , 91-STA-4, p. 4, citing 49 U.S.C. §§ 2305(a), (b); 2301(4) (no person shall discharge an employee for conduct protected by the STAA, and defines a person as "one or more individuals . . . "
In light of Wilson and the plain language of the STAA, if the conditions of 29 C.F.R. § 18.5(e) are satisfied, it is within the discretion of the undersigned to allow Complainant to amend his complaint to include Jack Maxwell as an individual respondent. It seems evident from the record that Complainant filed his complaint with OSHA on January 15, 2002. However, the record does not contain any such document - there is only a "Discrimination Case Activity Worksheet" noting January 15, 2002 as the investigation open date. According to the final investigative report filed by OSHA, Respondent filed a response to the complaint. Therefore, Complainant may not amend his complaint by right under 29 C.F.R. § 18.5(e). Complainant must then show that the amendment he is seeking is reasonably within the scope of the original complaint, that a determination of this matter on the merits will be facilitated by adding Maxwell, and that the amendment is necessary to prevent prejudicing the public interest and the rights of the parties.
Aside from stating that Maxwell was responsible for terminating Complainant and alleging that the term "persons" embraces individual liability, Complainant fails to set forth any reason to add Maxwell. Respondent filed Maxwell's affidavit in conjunction with its response, wherein Maxwell stated that he was responsible for the employment decision to terminate Claimant. Maxwell provided the affidavit to Respondent in February 2002, so he has had notice of this matter from the outset and has participated in the proceedings. In Wilson , the party who was added was the CEO of the Respondent and was responsible for the decision to terminate the Claimant. Maxwell, according to his affidavit, was only a temporary employee of Respondent who was hired for one year to manage the Olympic Torch Relay tour. More importantly, the discovery stage of this matter closes on August 8, 2003 and the hearing is set for September 9-12, 2003. It would be manifestly unfair to require Maxwell to enter this matter and prepare a defense at a time so close to the hearing. Complainant offers no reason to justify such a belated motion to amend. There are no allegations that the actions of Maxwell were unknown to Complainant. Complainant asserts no public interest that will be facilitated by adding Maxwell-even if Complainant did point to some public interest, it would have to be an extremely compelling interest to overcome the prejudice Maxwell would suffer from being added to this matter at such a late time.
I find that the resolution of this matter on the merits will not be facilitated by adding Jack Maxwell as an individual respondent. There is no indicia of prejudice to the public interest. Complainant has not alleged that he will be impaired in any manner if he is not allowed to amend his complaint to include Jack Maxwell. Therefore, Complainant's motion to amend his complaint to include Jack Maxwell as an individual respondent is denied.
2. Motion to Amend Complaint to Add TSCA as an Additional Statutory Basis
Complainant seeks to amend his complaint to add a cause of action under the protection provisions found at 15 U.S.C. § 2622, the Toxic Substances Control Act ("TSCA"). (Complainant's Motion, p.1). Complainant argues that the Department of Labor has a duty to provide him a full remedy for all of Respondent's actions taken in retaliation for his protected activity in reporting violations of federal motor carrier safety laws. He specifically alleges that Respondent's violations included violations of hours of service laws and the improper transportation of hazardous materials (propane containers). Furthermore, Complainant alleges that the public interest requires the amendment he seeks. Respondent argues that Complainant's motion to amend his complaint should be denied because his invocation of the TSCA is not timely, and because any mention of propane tanks and smoking prohibitions were related to the Federal Motor Carrier Safety regulations and bears no relationship to the purposes of TSCA or any chemical found by the United States Environmental Protection Agency ("EPA") to require regulation under the TSCA.
An employee alleging a violation of the employee protection provisions of the TSCA must file a complaint with the Secretary of Labor within 30 days of the alleged violation. 15 U.S.C. § 2622(b)(1). However, failure to file a complaint within the 30-day statutory period does not act as an absolute jurisdictional bar to administrative action. See School Dist. of City of Allentown v. Marshall , 657 F.2d 15 (3rd Cir. 1981). Rather, the doctrine of equitable tolling may be applied to administrative complaints filed under the TSCA, and tolling of the 30-day statutory period may be appropriate where the respondent has actively misled the complainant regarding the cause of action, if the complainant has been prevented in some extraordinary ways from asserting his rights, or where the complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. See Smith v. American President Lines, Ltd. , 571 F.2d 102 (2nd Cir. 1978); see also Marshall , 657 F.2d at 20 (agreeing that the three categories presented in American President Lines are the three principal situations where equitable tolling is appropriate). However, after the Third Circuit Court of Appeals in Marshall agreed that the doctrine of equitable tolling applied to a remedial provision like the TSCA, it applied the statutory period of limitations strictly and rejected the Secretary's decision to allow an amendment to the complaint because it found the Secretary's reliance on the complainant's lack of knowledge of the remedy and the lack of prejudice to the respondent to be unpersuasive. Marshall, 657 F.2d at 20.
Complainant was terminated on January 11, 2002. He then filed his complaint under the STAA on January 15, 2002. Obviously, the 30-day statutory period for filing a complaint under the TSCA has passed. Complainant states that the Department of Labor recognizes the right to amend timely complaints with amendments relating back to the original complaint. (Complainant's Motion, p. 1). In light of Complainant's citation to Proud v. CECOS International , 83-TSC-1 (Sec'y Mar. 30, 1984) and Porter v. Brown & Root, Inc. , 91-ERA-4 (ALJ Mar. 9, 1994), it is apparent that Complainant recognizes that his TSCA complaint falls outside of the 30-day statutory filing period. Complainant fails to assert any factual allegations that would warrant application of the doctrine of equitable tolling. I find that the doctrine of equitable tolling is not applicable to this matter. Complainant has failed to allege and substantiate any set of facts that would meet the conditions of any of the three categories recognized by the Second and Third Circuit Courts of Appeal in American President Lines and Marshall or any other circumstances that would warrant equitable tolling. Complainant's bald invocation of the public interest is insufficient. The public interest is adequately protected by adjudicating this matter solely under the Surface Transportation Act. Therefore, Complainant's motion to amend his complaint to include the Toxic Substances Control Act as an additional statutory basis is denied.
ORDER
IT IS ORDERED that the motion of Complainant to amend his complaint to include Jack Maxwell as an individual respondent and to include the Toxic Substances Control Act as an additional statutory basis is hereby denied.
THOMAS F. PHALEN, JR.
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